Sunder Lal vs Surat Singh and others

B.S. Yadav, J.

The opposite party, namely Surat Singh, Tara Chand, Mukhtiar Singh, Kartar Singh, Maha Singh and Ram Chander, were convicted under Sections 148, 323, 324 read with Section 149 of the Indian Penal Code, by the learned Judicial Magistrate Ist Class, Jhajjar and each was sentenced to various terms of imprisonment for each of the offences. The maximum sentence imposed was under Section 325 Indian Penal Code, and for that offence each of the accused was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/. Feeling aggrieved against their conviction, the accused filed appeal in the Court of Shri S.B. Ahuja, Additional Sessions Judge, Rohtak.

Sunder Lal one of the injured persons, filed two revision petitions in the said court. One was against the acquittal of the accused under Section 326 of the Indian Penal Code and the other was for enhancement of the sentence imposed by the learned trial Court. Before the learned Additional Sessions Judge, a question arose between the parties if the revision petition filed by Sunder Lal were maintainable in that Court. He has, therefore, formulated the following questions and has referred them to this court for directions :

(a) Whether court of Sessions possesses powers to enhance the sentence while hearing revision petition or such a power to enhance the sentence can only be exercised by the Hon''ble High Court ?

(b) Whether the revision against the order of acquittal passed by the Magistrate can lie before the Sessions Court ?

Presumably this reference has been made under Section 395(2) Cr. PC.

For better appraisal of the arguments advanced by the learned counsel for the parties it is necessary to refer to the relevant provisions of the Code of Criminal Procedure :

"377(I) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) ... ... ... ...

(3) Where an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentences except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing case, the accused may plead for his acquittal or for the reduction of the sentence".

"378(1) Save as otherwise provided in subsection (2) and subject to the provision of subsections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court or an order of acquittal passed by the Court of Sessions in revision.

(2) If such on order of acquittal is passed in any case in which the offence has been investigated by the Delhi Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of subsection (3), to the High Court from the order of acquittal.

(3) ... ... ... ...

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under subsection (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty in every other case, computed days from the date of that order of acquittal.

(6) If in any case, the application under subsection (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1) or under Section (2)".

"386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may :

(a) in an appeal from an order of acquittal reverse such order and direct that further inquiry by made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in a appeal from a conviction :

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in a appeal for enhancement of sentence :

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retired by a Court competent to try the offences or

(ii) after the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, or the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper :

Provided that the sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement :

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for that offence by the Court passing the order or sentence under appeal".

Section 397 of the Code of Criminal Procedure deals with the calling for records by the High Court and the Session Judge for exercising the powers of revision. It reads as follows :

"397. (1) The High Court or any Sessions Judge may call for an examine the record of any proceeding before and inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspend, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation : All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of Section 398.

(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

(3) If an application under this section has been made by any persons either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them".

Section 399 of the Code deals with the Sessions Judge''s power of revision and it reads as follows :

"399 (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Subsection (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions judge under subsection (1), the provisions of subsections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said subsection to High Court shall be construed as reference to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court".

Section 401 lays down the High Court''s powers of revision and it reads as follows :

"401. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly".

The question posed by the learned Additional Session Judge will have to be decided in the light of the above provisions.

The learned counsel (for the revision petitioners in the Sessions Court) has cited Prabhudas Chhaganlal and another v. Babubhai Virabhai Miseria and another, 1977 Crl.L.J. 1666. That ruling, no doubt, supports the petitioners in that case, it was remarked :

"Our conclusions, therefore is that a Sessions Judge can entertain an application in revision against sentence and enhance the sentence in revision in certain cases. It is clear that by making of this provision, the cases of enhancement of sentence at the instance of private party which would have normally gone to the High Court in respect of sentences passed by Magistrate subordinate to the Sessions Court, would how go the Sessions Court, and thereby the object of relieving congestion of the work in High Court in part will be achieved to some extent. We must however, make it clear that interference in revision with an order of sentence or order of acquittal is subject to the limitations laid down by the Supreme Court; and this power cannot be exercised as if the Sessions Judge is hearing an appeal".

However, with respect to the learned Judges who decided that case, I am not prepared to subscribe to that view.

In Prabhudas''s (supra), reliance was placed upon a decision of the Supreme Court in Nadir Khan v. State (Delhi Administration), 1975 Crl. L.R. (SC) 484 : 1976 Crl.L.J. 1721. In that Supreme Court case the question was raised that the High Court in revision under Section 401, Code of Criminal Procedure has no jurisdiction to enhance the sentence in the absence of an appeal against the inadequacy of sentence under Section 377. It was remarked as under :

"It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate Court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. The position was true and extent in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the Sections. It is true, the new Code has expressly given a right to the State under Section 377 Cr. PC to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What it is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Art 136 of the Constitution.

Section 401 expressly preserves the powers of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. the provisions under Section 401 read with Section 386(c) (iii) Cr. PC, are clearly supplemental to those under Section 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government as the case may be. There is therefore absolutely no merit in the contention of the learned counsel that the High Court acted without jurisdiction in exercising the power of revision, suo motu, for enhancement of these sentence in this case. The application stands rejected".

From the above observations of their Lordship of the Supreme Court, it is clear that they were considering the High Court''s power about the administration of justice and for keeping constant vigilance over the subordinate Courts. In that context, it was remarked that Section 401 expressly preserves the powers of the High Court, by itself, to call for the record without the intervention of any other agency. It is to be noted that under Section 399 of the Code, the Sessions Judge has not been given the power to call for the records of any case, decided by a Magistrate, which otherwise comes to its knowledge, Section 399, which has been reproduced above, begins with the words. "In the case of any proceeding the record of which has been called for by himself". Thus, the Sessions Judge has not been given the powers to call for the record without the intervention of any other agency. The omission therein of the words "or which otherwise comes to its knowledge", which find a place in Section 401 of the Code, in Section 399 by the Legislature is intentional. The Law Commission in its 14th Report has observed as under :

"We are, therefore, of the view that Sessions Judges may well be invested with powers to pass final orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence".

It appears that the legislature accepted the Report of the Law Commission and enacted Section 377 for filing appeal in High Court against the sentence on the ground of inadequacy, while Section 378 was enacted for filing an appeal in case of acquittal. If the Sessions Judge could exercise the power of enhancement of sentence or setting aside the order of acquittal, than there was no bar for the Legislature for providing appeals to the Sessions Judges for such purposes against the orders passed by the Magistrates.

In Parbhudas''s (supra), it was also remarked that while providing for the exercise of powers of revision by the Sessions Judges by Section 399(1) conferred upon the Sessions Judge, "All or any of the powers which may exercised by the High Court under subsection (1) of Section 401, the Legislature did not exclude Section 386(c) relating to enhancement of sentence while conferring those powers. Section 386 the Code, already reproduced above, defines in general the powers of the High Court, including the Court of Session. Section 386 comes after sections 374, 376 and 378. Subsection (3) of Section 374 reads as follows :

"374. (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

... ... ... ...

(3) Save otherwise provided in subsection (2), any person :

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

(b) sentence under Section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Sessions".

Thus, from the scheme of the Code, it is clear that, the Legislature provided the forum for appeals and thereafter enacted Section 386, defining the powers of the Appellate Courts. That Section 23 in general terms and it is applicable to both the High Court and the Session Judges as far as applicable. In the exercise of its revisional jurisdiction, the Sessions Court, therefore, cannot exercise some of the powers given to the Appellate Courts under Section 386. The above view of mine finds support from Chandrapal v. State and others, 1979 Cri. LJ 1437 wherein it was remarked :

"In Gujarat decision recourse was taken to Section 386 of the new Criminal PC which empowers the High Court to enhance the sentence while exercising appellate jurisdiction. On its basis that court was of the view that this power of enhancement of sentence exercised by the High Court in appeal was available in revision also.

..... ..... ......

A close scrutiny of the provisions of Section 386 Criminal P.C. indicate that it refers to the powers of the appellate Court in general, without any particular reference to the Court of Session. The power conferred under Section 377, Criminal P.C. does not find place in Section 386, Criminal P.C.

..... ..... ......

Reading both these Sections together it is clear that appeals on the question of sentence on the ground of inadequacy and against acquittal passed by the original or appellate court lie only to the High Court. Appeal against convictions on the other hand lie to the Sessions Court, High Court and the Supreme Court depending upon the nature of each case. It is thus clear that when Section 386, Criminal PC refers to the powers of the appellate Court in general; it speaks of the powers of the High Court as well as of the Court of Session without specifically mentioning those Courts in that Section. Nevertheless, if the power of the appellate Court are to be exercised with respect to matters which arise out of enhancement of sentence or acquittal then by virtue of Sections 377 and 378, Criminal PC it would be the High Court alone which would be empowered to exercise this jurisdiction.

..... ..... ......

It is thus clear that the Court of Sessions does not possess the power to enhance the sentence while exercising appellate jurisdiction. Such a power to enhance the sentence can only be exercised by the High Court."

For the foregoing reasons, it is held that :

(a) the Court of Session does not possess the powers to enhance that sentence while hearing a revision petition. Such powers can only be exercised by the High Court, and

(b) a revision petition against the order of acquittal passed by the Magistrate does not lie before the Sessions Court.

The reference is answered accordingly.

Reference answered.